CONTINENTAL MEDICAL v. MVAIC (2018)

Supreme Court, Appellate Term, New York.

CONTINENTAL MEDICAL, P.C., as Assignee of Edward Rivera, Respondent, v. MVAIC, Appellant.

2015-2611 Q C

Decided: November 02, 2018

PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ

Marshall & Marshall, PLLC (Tracy Bader Pollack of counsel), for appellant. Israel, Israel & Purdy, LLP (Jennifer Greenhalgh Howard of counsel), for respondent.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

After a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court awarded judgment to plaintiff in the principal sum of $15,646.35.

The evidence adduced at trial was insufficient to establish that plaintiff had exhausted its remedies against the vehicle's owner (see Matter of Acosta-Collado v. Motor Veh. Acc. Indem. Corp., 103 AD3d 714 [2013]; Hauswirth v. American Home Assur. Co., 244 AD2d 528 [1997] ). As a result, plaintiff's claim is premature (see Matter of Acosta-Collado, 103 AD3d 714; Hauswirth, 244 AD2d 528; Dr. Abakin, D.C., P.C. v. MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 5218[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; see also Matter of Sweet v. Motor Veh. Acc. Indem. Corp., 287 AD2d 510 [2001]; Matter of Troches v. Motor Veh. Acc. Indem. Corp., 171 AD2d 873 [1991] ).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

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